Diaz v Edwards

[*1] Diaz v Edwards 2009 NY Slip Op 50622(U) [23 Misc 3d 129(A)] Decided on April 9, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 9, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570001/09.

Melinda Diaz, Plaintiff-Appellant,

against

William Edwards and Bruce Diggs, Defendants-Respondents.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), entered April 17, 2008, which granted defendants' motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Julia I. Rodriguez, J.), entered April 17, 2008, affirmed, with $10 costs.

Defendants established prima facie that plaintiff did not suffer a serious injury as defined in Insurance Law § 5102(d). In opposition, plaintiff failed to submit the requisite contemporaneous or recent quantitative assessment of range of motion limitations based on objective testing (see Rossi v Alhassan, 48 AD3d 270 [2008]; Pulgram v Reisner, 44 AD3d 503 [2007]). While plaintiff's medical expert found that plaintiff had limited use and function of her left knee, he based his conclusion on plaintiff's subjective complaints of pain and did not report his personal observations of plaintiff while sitting, standing or walking, nor did he compare plaintiff's alleged limited abilities to the norm (see Page v Rain Hacking Corp., 52 AD3d 229 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 09, 2009